〔輪説〕
Advantages and Disadvantages
of Creating a Multi-Layered System
for the Protection of H uman Righ ts :
Lessons from UK -European Experiences under the European Convention
on Human Rights'
Akiko Ejima
1. Introduction: Two New Entries after World War 11
This paper explores the possibility of a multi.layered system of
human rights protection by comparing the UK and ]apanese experiences
under international and regional human rights protection systems. In
particular, 1 discuss three questions. First, is traditional democracy (whe.
ther a parliamentary democracy or presidential system) appropriate to
protect human rights in a globalised world? Second, is the traditional
discussion (or perception) that ‘who has a last word' helpful and construc-
tive to grasp reality? lt seems that, in the UK, the ‘last word' question can
中 Thispaper is a revised version of the draft which 1 submitted to the Sympo-sium on 'The Contextual Approach to Human Rights and Democracy -Dia-logue between Europe and ]apan', Strasbourg, 18-19 February 2013 CAcademic Conference on the 15th Anniversary of Japanese Attendance as an Observer in the Council of Europe, organised by Nagoya University, Japan, with support of the Council of Europe and the Japanese Consulate-General in Strasbourg).
法科大学院論集第 13号
be asked at two levels: ( 1 ) Parliament or the Supreme Court and ( 2 ) the
Supreme CourtjParliament or the European Court of Human Rights (see,
A and others v. Secretary 01 State lor the Home Dゅartment'and Hirst v. the
United Kingdom (No. 2),2 respectively). In this context, 1 also deal with
what it means to say that the European Court of Human Rights is a sub-
sidiary. Japan does not need to take this question seriously because the
Japanese Supreme Court rarely turns down legislation and the Japanese
government has not ratified any of the Optional Protocols of UN human
rights treaties which allow individuals to bring cases to international
organisations. The third and last question is can the UK and European
systems (or at least the UK system under the strong and substantial influ-
ence of the European system) be drawn as a multi-layered system of
human rights protection? If so, what are the advantages and disadvan-
tages of this system? 1 do not deny the role of the domestic system (par-
ticularly the domestic legislature), and do not support the superiority of
either the international or regional systems. Instead, 1 deconstruct the
constitutional system of human rights and reconstruct it as a part of the
multi-layered system of human rights protection, adding and reviewing
new entries and emphasising the importance of the legislature over all
other components of this system.
The paper focuses on two new entries in the constitutional system,
designed to protect human rights after the events of W orld War 11. The
first is judicial review, which has been incorporated into the governmen-
tal systems of many countries, including Japan. The second is interna-
tional human rights treaties, which have flourished all over the world.
Why have these two components been introduced? In general, the
experiences of human rights violations before and during World War 11
raised two main questions. First, if the legislature as a representative
body of the people enacts a statute which violates human rights, what
measures would be possible to remove the human rights violation achiev-
1 [2004J UKHL 56. 2 Judgment of 25 October 2005.
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Advantages and Disadvantages 01 Creating a Multi-Layered System lor the Protection 01 Human Rights
ed by that legislation? Second, if the government of a particular country
as a whole violates the human rights of a citizen or foreigner who resides
in the country, what measures would be possible to remove the human
rights violation accomplished by a government that claims sovereignty?
As far as the first question is concerned, the constitutional answer is
the introduction of judicial review. For example, Article 81 of the Consti-
tution of ]apan stipulates that ‘The Supreme Court is the court of last
resort with power to determine the constitutionality of any law, order,
regulation or official act'. This Article was the first time that ]apan incor-
porated judicial review into its government system after World War 11. It
must be noted that the introduction of judicial review or even the whole
design of the country's Constitution was initiated by the Allied Forces
(i.e. the American Occupation Army). Moreover, many countries in addi-
tion to ]apan adopted the concept of judicial review, much of which is
accomplished by constitutional courts.3 In contrast, the UK maintains the
traditional constitutional principle of the sovereignty of parliament,
which has prevented the entrenchment of the constitution and introduひ
tion of judicial review. Therefore, the significance of the 1998 Human
Rights Act (HRA) should not be underestimated, even though the Act
itself is no more than a statute which can be changed by parliamentary
legislation. The new powers given by the HRA to British higher courts
(particularly the Supreme CourtつunderSections 3 and 4 of the Act oblige
the British judiciary to interpret domestic legislation as compatible or
incompatible with a right established in the European Convention on
Human Rights (ECHR). However, it is important that the declaration of
incompatibility is not equal to the power of invalidation of the legislation,
3 It is interesting to point out that constitutional courts of Europe and the world have international forums to exchange view and experiences. See, (http:// www.confcoconsteu.org/en/common/home.html) (accessed 18/04/2012) and < http://www.venice.coe.int/WCCJ/WCCLE.asp)Caccessed07/02/2012).re-spectively. The latter one claims 61 members of constitutional courts and supreme courts of the world.
4 It is also interesting to note that the House of Lords as the highest court was transformed into the Supreme Court.
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法科大学院論集第 13号
which other constitutional and supreme courts have. Instead, it functions
in a way that makes it appear as if the court has this power since, to date,
the government has responded to declarations of incompatibility by
changing the pertinent law. 1 return to this issue later.
As to the second question (as well as the first question), the interna-
tional answer is that the international community will protect him or her.
Specifically, the international system of human rights protection has been
established by general, specific and regional human rights treaties. The
UK and ]apan ratified most of the major UN human rights treaties.
Moreover, the UK was one of the earnest drafters of the ECHR. However,
there is a legal difference in the status of treaties. The UK has to incorpo-
rate a treaty by parliamentary legislation to give a legal effect to a treaty
in the domestic legal system. In ]apan, a treaty automatically has a legal
effect in the domestic legal system after it is ratified. 1 have to add that
the difference does not make any significant difference in reality because
the ]apanese judiciary has been reluctant to cite or refer to international
human rights treaties. The outstanding difference between the UK and
]apan emerged after the introduction of the HRん
In my paper, 1 first explain the UK experiences under the HRA, which
brought the ECHR back to the UK. Second, 1 evaluate the country's expe-
rience and try to propose it as a possible model for a multi-layered system
of human rights protection. Third, 1 explain the ]apanese experience
under the Constitution of ]apan (1946). Finally, 1 point out the advan-
tages and disadvantages of a mUlti-layered system of human rights pro-
tection by comparing the UK and ]apan.
11. The UK Experience: Changes in the UK Human Rights
Protection System after the Human Rights Act of 1998
In my view, the introduction of the HRA greatly contributes to mak-
ing the UK human rights protection system a multi-layered one supported
by the development of the European system of human rights protection.
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Advantages and Disadvantages 01 Creating a Multi.Layered System lor the Protection 01 Human Rights
1. The Preparation for the Implementation of the Human Rights Act
of 1998
The two years of the preparation period 0998-2000) should be noted
as a good example of how seriously the government of a matured, demo-
cratic country takes the implementation of the HRA (与 ECHR). The
Human Rights Unit at the Home Office Oater transferred to the Lord
Chancellor' Department, which was merged in to the Department for Con-
stitutional Affairs (now the Ministry of J ustice)) was responsible for co-
ordinating the implementation process in governmental departments,
which had to check the compatibility of the legislation they use in their
work. Numerous training opportunities were offered not only to public
servants and judges as‘public authorities' for whom it is unlawful to act
in a way incompatible with a Convention right CSection 6 of the HRA),
but also to private sectors as‘hybrids' who are not public authorities in a
strict sense but whose functions have a public nature. The Human Rights
Flowchart in the guidance document created for public authorities is sym-
bolic in showing that the compatibility of public authorities' activities
comes first in the implementation process.5 Given that the method for
restraining the power of the government is the main purpose of a dassic
constitution, it is interesting that such a handbook was distributed inside
the government of long democratic history at the end of the 20th century.
This means that the UK government took the implementation very seri-
ously. Contrastingly, the more reluctant (and even sometimes hostile)
attitudes of the Labour government after 9/11 and the current Coalition
government (Conservative and Liberal Democrats) toward the HRA has
been recently observed. 1t is also questionable how far the HRA perme-
ates local governments and ‘hybrids'.
5 The present version can be seen at <http://www.justice.gov.uk/downloads/ human-rights/human.rights.handbook.for-public.authorities.pdO, p.51 Cac. cessed 08/02/2013).
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法科大学院論集第 13号
2. Compatible Interpretation (Section 3) and Declaration of
Incompatibility (Section 4): A New Role for the Judiciary
UK judges also trained themselves during the aforesaid preparation
period. This training was conducted by the Judicial Studies Board to
maintain the independence of the Judiciary. What was the result of the
two-year preparation? Since the HRA came into force on 2 October 2000,
27 declarations of incompatibility have been made, of which 19 have be-
come final according to a report by the Ministry of Justice.6 Eight of those
declared incompatible have been overturned on appeal, 12 were remedied
by subsequent primary legislation and two were remedied through reme-
dial orders created under section 10 of the HRA. Four were related to
provisions that had already been remedied by primary legislation at the
time of the declaration and, as of 8 August 2011, one is under considera-
tion to determine how to remedy its incompatibility. This shows that the
UK courts use the HRA (i.e. rights in the ECHR) as a means for them to
play the role of the defender of human rights. This frequency is probably
more than what was initially expected.
It is also possible to say that the judiciary has the last word (de facto)
because the government dutifully responds to declarations of incompati-
bility. Good examples of this are the declarations of incompatibility in
Bellinger v. Bellinger,1 which was followed by the 2004 Gender Recognition
Act, and A. and Others v. Secretary 01 State 01 the Home Department,8 which
was followed by the 2005 Prevention of Terrorism Act.
1t seems that compatible interpretation with the ECHR is a more con-
troversial area. From the beginning, R v. A (No. 2)9 caused controversy,
followed by more judgments, such as Mendoza v. Ghaidan.1o 1n Regina v.
6 Ministry of Justice Responding to human rights judgments, Report ωthe Joint Committee on human rights on the Government response to human rights judge-ments Session 2010一11,Cm 8162 CSeptember 2011).
7 [2003J UKHL 21. 8 Supra note 1. 9 [2002J 1 AC 45. 10 [2004J UKHL 30.
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Advantages and Disadvantages 01 Creating a Multi.Layered System lor the Protection 01 Human Rights
Chiel Constable 01 South Yorkshire Police exρarte LS and Reginαv. Chiel
Constable 01 South Yorkshire Police ex ραrte Mαゆer,1Ithe House of Lords
admitted the compatibility of Section 64 (lA) of the Police and Criminal
Evidence Act of 1984 with Articles 8 and 14 of the ECHR. However, when
the case went to Strasbourg, the European Court of Human Rights unani-
mously voted that the law violated Article 8 in S and Maゆerv. the United
Kingdom.12 In R (on the a.ρρlication 01 Gillan V. Commissioner 01 Police lor
the Metropolis and αnotheザ3the House of Lords stated that the Terrorism
Act of 2000 was compatible with the ECHR. However, in Gillan and
Quinton v. the United Kingdom, the European Court of Human Rights later
unanimously found that the law violated Article 8 of the ECHR.14
Where to draw the line between interpretation and legislation is diffi-
cult. It seems that a wider interpretation as a purposive interpretation
can be justifiable, particularly given that the case law of the European
Court of Human Rights adopts an evolutive and purposive interpretation
in light of the fact that it considers the ECHR a living instrument. 1 return
to this issue later.
3. Joint Committee on Human Rights in Parliament
The substantial role of the Joint Committee on Human Rights
(JCHR), a joint parliamentary committee between the House of Commons
and the House of Lords cannot be ignored.15 Its regular scrutiny of a11
Government Bills for human rights implications and compatibility has
produced numerous reports to Parliament. Moreover, the JCHR can pick
up urgent and important human rights issues. After 9/11, the regular
examination and follow-up of anti幽terrorismlegislation by the JCHR has
been one of few influential safeguards against human rights violations so
11 [2004J HL 39. 12 ludgment of 4 December 2008. 13 [2006J UKHL 12. 14 Judgment of 12 January 2010. 15 For example,日iebert,J..“Governing Under the Human Rights Act: The Limi.
tations of Wishful Thinking" [2012J P.L. 27, 38.
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法科大学院論集第 13号
far as the declaration of incompatibility by the judiciary has been used
less frequently. Furthermore, one of the JCHR's jobs is to examine the
execution of judgments of the European Court of Human Rights and dec-
larations of incompatibility, which is appreciated.16
It is also noteworthy that Section 19 of the HRA stipulates that a
Minister of the Crown in charge of a Bill in either House of Parliament
must before the Second Reading of the Bill make a statement of compati-
bility or a statement that, although he or she is unable to make a state-
ment of compatibility, the government nevertheless wishes the House to
proceed with the Bill.
The very recent research Cled by Murray Hunt, the Legal Adviser of
the JCHR) reveals that over the decade between 2000 and 2010 both the
quality and quantity of substantive debates about human rights in Parlia-
ment significantly increased. Between 2000 and 2005 there were only 23
substantive references to reports of the JCHR in parliamentary debates,
compared to more than 1,000 during the 2005-2010 Parliament.17
4. Equality and the Human Rights Commission as a National Human
Rights Institution
The creation of a human rights commission under the name of the
Equality and Human Rights Commission (EHRC) took some time before
it was established in 2006, despite the fact that the necessity for establish-
ing one had been mentioned in the HRA's 1998 White Paper. It is said that
it was difficult to integrate the three commissions that existed then. Since
then, however, some criticism regarding the management of the EHRC
has arisen. Even the JCHR showed concern by stating ‘Whether the
EHRC is doing enough to devise and disseminate a culture of respect for
16 Parliamentary Assembly, Committee on Legal Affairs and Human Rights,
Stockholm Colloquy:“Towards stronger implementation of the European Con-vention on Human Rights at nationallevel", 9-10 June 2008, AS/Jur (2003) 32 (23 June 2008).
17 Hunt, M., Hayley, H. and Yowell, P, Parliaments and Human Rights: Redressing the democratic deficit (Arts & Humanities Research Council, 2012).
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Advantages and Disadvantages 01 Creating a Multi.Layered System lor the Protection 01 Human Rights
human rights in public authorities, the main aim our predecessors identi-
fied for the Commission in their 2003 report on the case for a UK human
rights commission¥18
In brief, new acquisitions concerning a human rights-implementing
mechanism, such as the JCHR and the EHRC, are not unfamiliar in many
countries. Moreover, such measures have been encouraged by the UN's
Paris principles.
III. A Multi-Layered System of Human Rights Protection
Given new and old actors in the human rights protection system, how
and to what extent a multi-layered situation can be observed in the UK-
European context is the next question.
1. A Dialogue (or Ping-Pong) between the UK's Judiciary and
Parliament
The relationship between Parliament and the Judiciary in the UK has
been a popular issue among British constitutional scholars. In my view,
there existed a dialogue-like situation during the first half of the decade
after the HRA went into effect. As 1 said before, Bellinger v. Bellinger and
A.αnd others v. Secretary 01 State 01 the Home Department are good exam-
ples among the 27 cases in which declarations of incompatibility were
made. The latter in particular is a benchmark for the judiciary as having
the last word, which was confirmed by Strasbourg in A v. the United King-
dom.19 The disappointing aspect of the House of Lords' judgment is the
result of the democratic response under the Prevention of Terrorism Act
18 Joint Committee on Human Rights, Equality and Human Rights Commission,
Thirteenth Report of Session 2009-10, HL 72/HC 183 [incorporating HC 1842-i and ii of Session 2008-09J (2 March 2010). Some commissioners of the first term of the Commission resigned and made allegations about the way in which the body was led by the chair (at that time). See, (http://www.parlia ment.uk/business/committees/committees-a-z/ioint-select/human-rights-com mi ttee/ eq uality -and -h uman-righ ts-commission/> (accessed 08/02/2013).
19 Judgment of 19 February 2009.
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法科大学院論集第 13号
of 2005, which abolished the discriminatory (only for foreigners) depriva-
tion of liberty created by the 2001 Act but also installed a control-order
regime applicable to everybody. The new regime can restrict freedom of
personallife thoroughly.
After 7/7 (the London Bombings in 2005) the situation changed and
the judiciary seemed to become more deferential to Parliament and the
government. The House of Lords as the highest court in the UK stated
that the control叩・dersystem was compatible with human rights provi-
sions, although in a few individual cases it admitted that a few specific
control orders were incompatible.20 This shows the limits of dialogue.
First, the judiciary does not have the authority to instruct Parliament
about what should be done to remove any incompatibility.21 Second, the
judiciary cannot raise human rights issues, but rather has to wait for a
case in which human rights issues can be discussed. After 9/11, and par-
ticularly 7/7, the Government did not hesitate to show their dissatisfac-
tion and frustration about the aforementioned incompatibility judgments
regarding anti-terrorism legislation.
When the UK judiciary has difficulty interpreting ECHR rights, the
case law of the European Court of Human Rights may be helpful. Section
2 of the HRA states that a tribunal court determining a question which
has arisen in connection with a Convention right must take into account
any judgment, decision, declaration or advisory opinion of the European
Court of Human Rights.
Lord Bingham in R CUllαh) v. Sρecial Adjudicator addressed Alcon-
bury's proposition:
.. .reflects the fact that the Convention is an international instrument,
the correct interpretation of which can be authoritatively expounded
only by the Strasbourg court. From this it follows that a national
20 For example, Secretary 01 State lor the Home Department vJJ [2007J UKHL 45. 21 In fact the judiciary can have a wider discretion when it interprets the legisla-
tion to be compatible with the ECHR.
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Advantages and Disadvantages 01 Creating a Multi.Layered System lor the Protection 01 Human Rights
court subject to a duty such as that imposed by section 2 should not
without strong reason dilute or weaken the effect of the Strasbourg
case law... It is of course open to member states to provide for rights
more generous than those guaranteed by the Convention, but such
provision should not be the product of interpretation of the Conven-
tion by national courts, since the meaning of the Convention should
be uniform throughout the states party to it The duty of national
courts is to keep pace with the Strasbourg jurisprudence as it evolves
over time: no more, but certainly no less,"
Recently, reflecting upon recent judgments and critical1y considering
the Ullah judgment, Lord Irvine, the architect of the HRA, expressed his
view about the interpretation of Section 2, stating that ‘Section 2 of the
HRA means that it is our Judges' duty to decide the cases for themselves
and explain c1early to the litigants, Parliament and the wider public why
they are doing so. This, no more and certainly no less, is their Constitu-
tional dutyア3
This shift of emphasis Cfrom Bingham to Irvine) reflects, to some
degree, the recent relationship between the UK judiciary and the Euro-
pean Court of Human Rights.
2. A Dialogue between the UK Judiciary and European Court of
Human Rights
Before the HRA, British judges had no legal obligation to take into
account the case law of the ECHR. Now, however, it is these same
judges' obligation to interpret whether all domestic legislation is compati-
ble with the ECHR, taking into account Strasbourg case law. That raises
the issue of what judges can do if they find it difficult to follow Stras-
bourg case law.
22 [2004J UKHL 26“ Emphasis is add巴dby the author 23 http://www.ucLac.uk/laws/iudicia1-institute/docs/Lord_Irvine_Convention
Rights_dec_2012.pdf (accessed 18/04/2012)
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法科大学院論集第 13号
Recently, there have occurred interesting exchanges between the UK
judiciary and European Court of Human Rights. The fourth section of the
European Court of Human Rights found in Al-Khaωaja and Tahery v. the
United Kingdom24 that Articles 5 ( 1 ) and 5 ( 3 ) were in violation, directly
disagreeing with the British judges' view expressed in R v. Sellick and
Sellick.25 However, the Court of Appeal and House of Lords clearly re-
fused to follow the above chamber judgment in a different case.田 Lord
Phillips stated:
1 do not accept that submission. The requirement to ‘take into
account' the Strasbourg jurisprudence will normally result in this
Court applying principles that are clearly estab!ished by the Stras-
bourg Court. There will, however, be rare occasions where this court
has concerns as to whether a decision of the Strasbourg Court suffi-
ciently appreciates or accommodates particular aspects of our domes-
tic process. In such circumstances it is open to this court to decline to
fOllow the Strasbourg decision, giving reasons for adopting this
course. This is likely to give the Strasbourg Court the opportunity to
reconsider the particular aspect of the decision that is in issue, so that
there takes place what may prove to be a valuable dialogue between
this court and the Strasbourg Court. This is such a case.21
Then, the UK government referred the case to the Grand Chamber,
which changed the finding, admitting that‘the sole or decisive rule'
adopted by the chamber judgment was too rigid.'s The President of the
European Court of Human Rights identified the occasion as a good exam-
ple of the ‘dialogue through decisions and judgments' in a speech given at
the opening of the judicial year of the European Court of Human Rights
24 Judgment of 20 January 2009. 25 [2005J EWCA Crim 651. 26 R v Horncαstle and others [2009J UKSC 14 27 Id at, para 11.丘mphasisis added by the author. 28 Judgment of 15 December 2011 (GC).
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Advantages and Disadvantages 01 Creating a Multi.Layered System lor the Protection 01 Human Rights
on 27 January 2012.29
3. A Dialogue between the UK and Europe (Council of Europe)
The UK played a very important role in drafting the ECHR, but did
not incorporate the ECHR into UK law or take measures to implement the
ECHR when the UK ratified it. To the government's surprise, individual
applications of the European Commission of Human Rights surged and
contributed to establishing the early case law of the ECHR. With a few
difficult exceptions, however, the government rather dutifully executed
the judgment of the European Court of Human Rights. It has to be added
that, before the HRA, awareness of the ECHR among the domestic judici-
ary, Parliament, government and the general public was relatively low.
However, the present situation appears different: Strasbourg receives
more publicity because of difficult cases in which the UK judiciary, legis-
lature and the government find it difficult to agree with the views of the
European Court of Human Rights. As explained previously, the judiciary
clearly shows this disagreement in R v. Horncastle and others.3O Some par-
liamentarians were shocked by the judgment of Hirst v. the United King-
dom (No. 2)31 (prisoner's right to vote) and passed a motion to prevent
amendment. The government was annoyed by extradition cases such as
Othman (A b Quαtada) v. the United Kingdom,32 in which the European
Court of Human Rights disagreed with the UK government's decision to
extradite a foreign terrorist suspect. Because of this fury, the European
Court of Human Rights has become more often covered by the UK media,
particularly the tabloid papers.
Recent1y, the Committee of Ministers of the Council of Europe held
the Brighton Conference 08-20 April2012) under the chairmanship of the
29 <http://www.echr.coe.int/NR/rdonlyres/9F353912・lF71.4ABD・827F.4CEBA52E DBDO/0/2012_AUDIENCE_SOLENNELLE_Discours_Bratza_EN.pdt> (access. ed 30/03/2012). Emphasis is added by the author.
30 Supra note 26. 31 Judgment of 6 October 2005 (GC). 32 Judgment of 17 January 2012.
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法科大学院論集第 13号
UK (7 November 2011-14 May 2012). The Conference adopted the
Brighton Dec1aration, which is the successor to the Dec1arations adopted
at the 1nterlaken (2010) and 1zmir Conferences (2011), both of which
aimed to reform the European Court of Human Rights. It was reported
that the UK government would lead attempts to agree to measures in
which the number of cases reaching Strasbourg could be curtailed by
focusing on the most important and serious human rights violations,
thereby giving power back to domestic courts. One of main proposals
was to inc1ude a provision which c1early stipulates the subsidiary role of
the European Court of Human Rights and the margin of appreciation of
contracting states.国 Moreover,Prime Minister Cameron overtly criticised
the European Court of Human Rights during his speech given at the
end of January 2012 at the Parliamentary Assembly of the Council of
Europe.34
This trend goes hand in hand with the attacks on the HRA. 1n March
20日theCommission on a British Bill of Rights was esiablished to investi-
gate the creation of a UK Bill of Rights that incorporates and builds on
the country's obligations under the ECHR, ensuring that these rights con-
tinue to be enshrined in UK law and protecting and extending citizen's
liberties. At the same time, the Commission is supposed to provide in-
terim advice to the government regarding the on-going lnterlaken proc-
esses in regards to reforming the Strasbourg court and the UK's
Chairmanship of the Council of Europe. 1n December 2012, the Commis-
sion submitted a rather modest report showing how difficult it is to create
a new Bill of Rights in the 21st century by the commissioners failing to
reach a unanimous conc1usion regarding anything.35
33 The proposal is toned down in the Brighton Declaration as those principles will be included in the preamble, but not as a provision. (http://hub.coe. int/20120419-brighton-declaration) (accessed 07/02/2013).
34 UK Prime Minister's speech at the Parliamentary Assembly, Wednesday 25 January, (http://www.numberlO.gov.uk/news/european働court.白of-human-rights)(accessed 22/02/2012).
35 (http://www.justice.gov.uk/about/cbr) (accessed 907/02/2013).
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Advantages and Disadvantages 01 Creating a Multi.Layered System lor the Protection 01 Human Rights
In sum, active interactions between domestic and international actors
at severallevels have been observed. It is naive to describe these interac司
tions as friendly dialogues in the short run. However, in the long run they
have the possibility to develop a concept of shared responsibility for the
protection of human rights at national and international levels.
IV. The Japanese Experience: No Change in the Human Rights
Protection System Since 1946
When the UK and Japan are compared in terms of their development
of human rights protection systems over the last 15 years, their stark
contrast is quite shocking. It is obvious that the classic model of the con-
stitutional arrangement upon which the Japanese Constitution is based
has difficulty coping with modern issues concerning human rights in a
globalised world. To cope with modern human rights issues, more and
more countries adopt national human rights institutions and constitu-
tional reforms. However, Japan has not amended its Constitution since it
was taken into effect in 1946. 1 now explore the current situation of the
Japanese constitutional system from the perspective of constitutional
realisation and promotion of human rights.
1. The Judiciary
The overall attitude of the Japanese judiciary, particularly the Su-
preme Court is deference to the Diet (the legislature) and the government.
Judicial review was initially expected to work as a guardian of human
rights. In the 1960s and 1970s various controversial political and social
issues were brought to the courts. The biggest controversy has been the
constitutionality of the Selt-Defence Force as Article 9 of the Constitution
prohibits the possession of land, land, sea, and air forces. However, the
Supreme Court has avoided the direct answer, relying on either proce-
dural limit or theoretical excuse (so called political question).
There were only eight cases in which the Supreme Court found stat-
utes as unconstitutional since 1947 when the Supreme Court was estab-
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法科大学院論集第 13号
lished. The Court has been very reluctant to refer or take into account the
international human rights treaties ]apan ratified, presupposing that the
content of the international human rights treaties is similar to the content
of right clauses in the Constitution. Thus it is not necessary for the Court
to consider the treaties. Recently a subtle change occurs in the judgment
of the Supreme Court when it admitted the violation of the equality
clause of the Constitution in a particular case. 1 shall return this issue
later.
2. The Legislature (Diet)
The Lower House and the Upper House, or the Diet as a whole has no
select or special committee on human rights. Therefore, whether human
rights concerns are raised in the legislature depends on an individual or
collective initiative from members of the Houses when they have a spe-
cific cause. A good example is the hardship of patients infected with the
Hepatitis-C virus through tainted blood products due to the negligence of
the government to supervise the pharmaceutical companies. After the
long-lasting huge欄scalelegal battle against the government and compa-
nies coupled with few MPs' support, the situation has slowly improved,
culminating in the enacting of the Basic Act on Hepatitis Measures in
2010. Furthermore, the plight of the former Hansen's disease patients is
the other shocking example of the lack of systematic human rights pro-
tection by the Diet. The Leprosy Prevention Act (1907) and the 1953 Act
(which replaced the 1907 Act) forced patients to enter a sanatorium,
where their rights were hugely curtailed. The Act was kept in force even
after it became scientifical1y clear that restraint of the patients was not
neccessary as the virus was very weak and medication was established.
The Kumamoto District Court admitted that the negligence of the execu-
tive and legislature was so grievous that former patients were entitled to
receive compensation.36 The 1953 Act was finally abolished in 1996.
Moreover, the Diet passed the Act on Payment of Compensation to In-
36 Kumamoto District Court, judgment of 11 May 2001. 1748 Hanrei Jiho 30.
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Advantages and Disadvantages 01 Creating a Mu1ti.Layered System lor the Protection 01 Human Rights
mates of Hansen's Disease Sanatorium (2001) and the Act on Promotion of
Resolution of Issues Related to Hansen's Disease (2008). Those examples
show the Diet's disadvantage in that it is not designed to tackle human
rights issues systemically and thoroughly. On the other hand, they illus-
trate that once the Diet becomes aware of the existence of human rights
violations and is determined to cope with them under the strong influence
of public opinion, it can offer a more complete and thorough solution as
legislation that the executive can implement.
3. The Failure of the Human Rights Protection Bill
The Ministry of Justice has a human rights bureau and related agen-
cies.37 It also appoints private citizens as human rights volunteers (about
14,000 people). They are helpful to give a daily advice to an individual
with small-scale problems but not equipped with an authority or re-
sources to deal with more difficult problems. However, there is no effec-
tive independent national human rights institution compatible with the
UN Paris Principles.38 In 2002, the government tried to pass the Human
Rights Protection Bill to cope with human rights complaints. The Bill
intended to establish a human rights commission as a national human
rights institution. However, the Bill was severely criticised by the media
and academics. The media argued that the bill would impede the free
activities of journalists as watchdogs. Academics doubted the independ-
ence of the commission, since the Bill intended to establish a commission
as an external agency of the Ministry of Justice. It was scrapped in 2003
after the dissolution of the Lower House. In December 2011, the govern-
ment of the Democratic Party of Japan (DPJ) announced that it was going
to prepare a bill to establish a national human rights institution.39 The
DPJ, however, lost the general election in December 2012.
37 http://www.moj.go.jp/ENGLISH/HB/hb・Ol.htmland;hitp://www.moj.go.jp/ ENGLISH/HB/hb.04.html (accessed 31/01/2012).
38 Principles relating to the Status of National Institutions were adopted by the General Assembly Resolution 48/134 in 2003.
39 http://www.moj.go.jp!JINKEN/jinken03_00062.html (accessed 31/01/2012).
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法科大学院論集第 13号
4. Status and Influence of Human Rights Treaties in the Domestic
Constitutional System: Absence of Individual Communication to
the UN Human Rights Bodies
In Asia a regional human rights treaty has not been established yet.
]apan ratified major international human rights treaties. but it should be
emphasised that ]apan has not ratified any Optional Protocols. which
enable individuals to communicate human rights violations to the UN
bodies. As to the status of human rights treaties, they are superior to
statutes but inferior to the Constitution
( 1) Domestic Implementation of Human Rights Treaties
The influences of human rights treaties can be observed at two levels;
the first is domestic implementation. This may be classified into five
spheres. First, the influences upon the legislature have been modest. The
most influential moment is when the government ratifies a human rights
treaty, since the government has to get approval from the Diet. A good
example is the ratification of the Convention on the Elimination of All
Forms of Discrimination against Women in 1985. To ratify the Conven-
tion. the Diet passed the Act on Securing Equal Opportunity and Treat-
ment between Men and Women in Employment in 1985. Moreover, the
Nationality Act was amended to make it possible that a child of a ]apa-
nese female national who married a foreign man becomes a ]apanese na-
tional. On the other hand. when the government ratified the Convention
on the Rights of the Child, no legislative action was taken, presupposing
that the condition of children in ]apan is compatible with the standards
the Convention requires. In general. awareness of international human
rights treaties is not high in the Diet except for a few MPs who maintain
specific causes such as the abolition of the death penalty.
The second sphere is the government (the executive), which has the
principal role of examining whether there is any discrepancy between the
domestic legislation and practice. and the treaty, which the government
will ratify. After ratification the government is responsible for imple-
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Advantages and Disadvantages 01 Creating a Multi-Layered System lor the Protection 01 Human Rights
menting the international standards. A good example is again the estab-
lishment of the Counci1 for Gender Equality and the Gender Equality
Bureau at the Cabinet Office of the government in 2001. The Gender
Equality Bureau is mandated with the formulation and overall coordina-
tion of plans for matters related to promoting the formation of a gender-
equal society, as well as promoting the Basic Plan for Gender Equality and
formulating and implementing plans for matters not falling under the
jurisdiction of any particular ministry.40 However, it must be noted that
the outcome is not yet satisfactory. ]apan is ranked as 57th among 109
countries in terms of the gender empowerment measure.41 Moreover,
women have been poorly represented in the policy decision-making proc欄
ess. The government set the goal of a 20% participation rate in 1996, but
it fai1ed in every field such as the legislature, the judiciary and the execu-
tive, except for the members of the consultation commission, which is just
a consultative body without any substantial decision耐makingauthority
and whose members the government can freely nominate. At present, the
government has set another ambitious goal of 30% participation by 2020,
although it is likely to fai1 unless the government adopts some radical
measures inc1uding strong positive actions. As far as other international
human rights treaties are concerned, there is no governmental body that
specifically works on the implementation of each treaty.
The third sphere is the judiciary. In general, the judiciary has been
very reluctant to use or even refer to international human rights treaties.
Lawyers often refer to human rights treaties when they discover a c1earer
and more detailed c1ause in the treaty that would support her or his argu-
ment. However, until now, the courts have been reluctant to accept such
citation of treaties. First, if the Constitution protects the same human
rights that the international treaty protects, it is not necessary for courts
to look at international ones. Second, domestic judges find it difficult to
40 http://www.gender.go.jp/english_contents/category /sorcia12_e.html (access-ed 31/01/2012.)
41 The 2009 UN Development Report. < http://hdr.undp.org/en/reports/global! hdr2009) (accessed 07/02/2013).
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法科大学院論集第 13号
use international text due to lack of understanding of human rights trea-
ties in general as well as the limited case law available in the UN body (In
the European system, domestic judges can consult the rich case law of the
European Court of Human Rights). Third, when the legislature is not
enthusiastic to utilise the treaty, it is rather dangerous for judges to admit
that a statute is incompatible with a treaty since they might be criticised
that they are not legislators. Fourth and last. a violation of a treaty is not
considered a successful reason to appeal to the Supreme Court. Therefore.
the use of international human rights treaties in the courts has been dead-
locked.
The Supreme Court, particularly. has consistently denied the exis-
tence of violations of human rights treaties without properly reasoned
explanation. A good example is a case about the right of access to the
court (Article 32 of the Constitution). The plaintiff. a prisoner who sued
a prison warden because of ma1treatment by the prison officers. claimed
that his right of access to the court was denied because the head of the
prison curtailed the meeting time with the plaintiff's lawyer. and all the
meetings were supervised by prison officers. The local district court and
the high court admitted the plaintiff's argument partially on the basis of
the ICCPR and even the ECHR case law (particularly Golder v. the United
Kingdom42 and Silver v. the United Kingdom43) and awarded the plaintiff
compensation. Conversely, the Supreme Court denied thc violations of
the ICCPR without reasons.44
However, as 1 mentioned before, there is a new indication that the
Supreme Court would take into account the human rights treaties as well
as foreign law.45 In a case where the constitutionality of the Nationality
Act was questioned (the Act denied to grant Japanese nationality to a
42 Judgement of 21 February 1975. 43 Judgement of 25 March 1983. 44 Supreme Court, first bench, 7 September 2000, 199 Shumin 283. 45 Ejima, A..“A Gap between the Apparent and Hidden Attitudes of the Supreme
Court of Japan towards Foreign Precedents" in Groppi, T. and Ponthoreau,
M.-C. Cedsよ TheUse 01 Foreign Precedents by Constitu抑制1]udges CHart,
2013).
20
Advantages and Disadvantages 01 Creating a Multi-Layered System lor the Protection 01 Human Rights
child born between a ]apanese father and a non-]apanese mother, who
were not legally married), the Supreme Court referred to the ICCPR and
CRC as well as legislative trends in other countries.
‘In addition, it seems that other states are moving towards scrapping
discriminatory treatment by law against children born out of wed-
lock, and in fact, the International Covenant on Civil and PoUtical
Rights and the Convention on the Rights of the Child, which Japan
has ratified, also contain such provisions to the effect that children
shall not be subject to discrimination of any kind because of birth.
Furthermore, after the provision of Article 3, para.1 of the Nationality
Act was established, many states that had previously required
legitimation for granting nationality to children born out of wedlock
to fathers who are their citizens have revised their laws in order to
grant nationality if, and without any other requirement, it is found
that the father-child relationship with their citizens is established as
a result of acknowledgement¥46
The fourth sphere is the activities of human rights NGOs, which have
been very strong. There are general and specific NGOs that work for
awareness campaigns and offer voluntary help to the individuals who
have specific problems such as poverty, domestic violence and dis-
crimination. Moreover, NGOs play an important role when they submit a
counter-report to the UN monitoring bodies. The fifth and last sphere is
those in the private sector such as companies, particularly those compa-
nies still in a nascent stage; how they would develop remains to be seen.
( 2) International Implementation of Human Rights Treaties
The core of the international implementation of human rights treaties
is the periodic State Party reports to the UN bodies, as ]apan has not
46 Supreme Court, grand bench, 4 June 2008, 62 Minshu 1367. Emphasis is added by the author.
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法科大学院論集第 13号
adopted individual communication measures. The ]apanese government
submits periodic reports under the obligation of six international human
rights treaties: ICCPR; ICSECR; Convention on the Elimination of All
Forms of Discrimination Against Women; International Convention on
the Elimination of All Forms of Racial Discrimination; the Convention on
the Rights of the Child; and the Convention against Torture and Other
Cruel. Inhuman or Degrading Treatment or Punishment. Moreover. it is
now subject to the Universal Periodic Review by the Human Rights Coun-
cil of the UN.47 Concluding observations given by the monitoring bodies
of treaties are sometimes reported by the ]apanese media. although the
impact is limited.
Because of strong and effective participation of the human rights
NGOs that submit counter-reports to UN bodies to challenge ]apanese
government report. a cordial custom gradually has been established in
which the ]apanese government offers an opportunity to receive opinions
of the NGOs about a government report before the government submits it
to a UN body. Taking into account the detailed content and regularity of
the national reports with the appraisal by the UN human rights bodies.
there is a possibility to utilise a process by establishing a database to
monitor the government activities in the long run.
V. Conc1usion: A Contrast between Fertility and Scarcity
The advantages and disadvantages of a multi-layered system of
human rights protection can be observed from a comparison between the
UK and ]apan. As to the advantages. the first is that an issue is more
likely to be discovered and coped with efficiently and sufficiently if the
system is multi-layered. Second. even if a problem only affects a limited
number of the people in a particular country. it can be universal in a re-
gional or international community. A good example is the case of trans-
47 Report of the Working Group on the Universal Periodic Review: Japan. A/ HRC/8/44, 30 May 2008.
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Advantages and Disadvantages 01 Creating a Multi.Layered System lor the Protection 01 Human Rights
sexual people (Christine Goodwin v. the United Kingdom岨)and the case of
Hansen's disease patients (2001 Kumamoto District Court judgment). The
latter spent an unforgivable amount of time solving the issue because
they were extremely isolated, even though a new trend for handling it
existed at the worldwide leveL Third, a multi-layered system gives more
opportunities for a victim of human rights violations to challenge the
system. Forth, a multi也layeredsystem creates the possibility for main-
taining established human rights standards (core rights such as the right
not to be tortured by the state) in a difficult situation in which the state
is prone to compromise. Fifth and last, a multi-layered system can keep
an issue alive (again, the transsexual case is a good example). Sixth and
finally, a multi-layered system can foresee a possible issue of human
iights as it covers a wider territory."
The disadvantages of a multi-layered system are the confusion or
conflict that can arise among domestic and international actors due to
their being influenced by traditional constitutional arrangements, politi-
cal pressure and national emotion. This could be further aggravated by
the familiar argument that who has a last word -the judiciary or legisla-
ture, national or international court, Contracting State or international
organisation -wins. In my view, this problem might be solved if a model
is created, where no actor has the last word but each has a moment to
appear on the stage, has authority to decide an issue at a certain moment
and place and then must hand over the issue to a different actor with a
different authority and a function. Under the same universal rules as
those that establish human rights, the content of these responses cannot
be fixed in advance but must rather slowly develop through dialogues
among different actors. In my view, the UK and the European Conven-
tion on Human Rights are possible candidates for creating this model,
despite the current difficult relationship that exists between the UK and
48 Judgment of 11 July 2002 49 S. and Marper v. the United Kingdom. supra note 12. is a good example. The
European Court of Human Rights gave the alarm to a possible danger of DNA technology.
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法科大学院論集第 13号
Strasbourg.
The executive summary of the report on the JCHR mentioned before
reveals an important point.
The choice between the Courts and Parliament as the guardians of
human rights is increasingly rejected. In place of that old dichotomy
there is now widespread agreement that all branches of the State
-Parliament, the Executive and the Judiciary一 havea shared re-
sponsibility for the protection and realisation of human rights. What
explains the paradox that this emerging consensus about the shared
responsibility for protecting legally recognised human rights is ac蜘
companied by new levels of dissensus about who has the final say.50
The above concept of the shared responsibility coincides with the
speech of the President of the European Court of Human Rights when he
delivered his speech at the Brighton Conference last year, in which he
said:
As to subsidiarity, the Court has clearly recognised that the Conven-
tion system requires a shared responsibility which involves estab-
lishing a mutually respectful relationship between Strasbourg and
national courts and paying due deference to democratic processes.51
The more urgent question is not who has a final say, but how a multi-
layered system in which every actor -national, regional or international
一 hasan allocated role and shared responsibility for protecting human
rights can be established.
50 Supra note 17 at 6. Emphasis is added by the author. 51 Speech of Sir Nicholas Bratza at the Brighton Conference in 18-20 April 2012.
(http://www.echr.coe.int/NR/rdonlyres/8D587 AC3・7723-4DB2・B86F・01F32C7CBC24/0/2012_ BRIGHTON_Discours_Bratza_EN.pdf) (accessed 01/02/2013). Emphasis is added by the author.
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